WHAT NEXT AT CBP?
If you have been watching the cases coming out of FLRA the last year or so, you probably noticed that Customs and Border Protection (CBP) continues to lose a lot of back pay cases to NTEU. Moreover, they are big cases worked out of the union’s national Negotiations department as class action grievances involving thousands of employees. Given that CBP decided to exhaust every avenue of appeal, including asking for reconsiderations when it loses initially at FLRA, some of the back pay claims go back to the last century. It is a good bet that the total amount due employees is measured in the hundreds of millions. And from what we can see, the time has come for CBP to pay—or refuse to comply with the law despite being a law enforcement agency. For example,
On June 30, 2015 FLRA denied CBP’s reconsideration request in NTEU, 68 FLRA No. 116. That involves a grievance NTEU Negotiators filed in 2005 and that CBP has taken to FLRA about six times in various iterations. It is now out of appeals. The way the grievance was phrased a decade ago prevents CBP from asking a court to overrule an arbitrator. The only option is for this “law enforcement” agency to ignore the clear and unmistakable law making the June 30th decision final and binding and force FLRA to do something about it to get employees paid.
While it has not happened often, this kind of noncompliance has occurred before, e.g., NATCA, 55 FLRA 293 (1999). Unfortunately, it means that NTEU will have to file a new ULP, get a decision, endure another CBP appeal to FLRA, go through another reconsideration request and then deal with an agency appeal to the federal courts, maybe even the Supreme Court. While technically it cannot re-litigate the merits of the original grievances and FLRA decisions before any court, it is not impossible that it might find some judges sympathetic to the agency’s plight who find a way to kick the case back to start again or even void the decision. After all, a nine-figure back pay bill tends to draw peoples’ attention. (We assume NTEU will point out to the court that whatever mess the agency claims is too horrible to demand correction is of the agency’s own making.)
Another way out of its dilemma is for CBP to make a deal with NTEU where it pays substantially less than it is technically required to do, but make other concessions that the union might not otherwise get at a term bargaining table. That just might be harder for the union to do than the agency. In any event, it will take some very creative bargaining on both sides to structure such a deal. Very, very creative bargaining.
Stay tuned to this one. Folks on both sides of the bargaining table are going to learn something from it about what happens when an agency kicks the can down the road for 10 years.